Taslik, I. v Minister for Immigration local Government and Ethnic Affairs

[1990] FCA 260

2 6 0      70

JUDGMENT NO. ........ / ........ ........

GENERAL DISTRIBUTION NOT REQUIRED

IN THE FEDERAL COURT OF AUSTRALIA)

)

VICTORIA DISTRICT REGISTRY	)	NO. VG 413 of 1989
1
GENERAL DIVISION	)

B E T W E E N :

IBRAHIM TASLIK

Appellant

A N D :

MINISTER	FOR
IMMIGRATION	LOCAL

GOVERNMENT AND ETHNIC

AFFAIRS

Respondent

JUDGE MAKING ORDER:	KEELY J.
DATE ORDER MADE:	8 JUNE, 1990
PLACE ORDER MADE:	MELBOURNE

MINUTES OF ORDER

18 J U N 1990

THE COURT ORDERS THAT:	PRINCIPAL
REGISTRY
36 of the Federal Court Rules.)

1.      The appeal be dismissed.

1. The appellant pay the respondent's costs of the

appeal.

(Note: Settlement and entry of orders is dealt with in Order

GENERAL DISTRIBUTION KOT REQUIRED

IN THE FEDERAL COURT OF AUSTRALIA)

)

VICTORIA DISTRICT REGISTRY	)	NO. VG 413 of 1989
)
GENERAL DIVISION	)

B E T W E E N :

IBRAHIM TASLIK

Appellant

A N D :

Respondent

8 JUNE, 1990 KEELY J.

REASONS FOR JUDGMENT

This is an appeal from a decision ("the decision") of the Administrative Appeals Tribunal ("the Tribunal"), constituted by a Presidential Member, affirming a decislon by a delegate of the Minister, made on 29 April 1989 pursuant

Mr. Ibrahim Taslik ("the appellant"), be deported from	to S. 12 of the Migration Act 1958 ("the Act"), ordering that
Australia. The appeal is brought pursuant to the provisions of S. 44 of the Administrative Appeals Tribunal Act 1975 and is limited to questions of law.
It appears from the Tribunal's reasons for decision that the applicant is a Turkish citizen aged 43 years who
arrived in Australia on 20 September, 1972, accompanied by his wife, together with their twin daughters, who had been born in Turkey in 1970. Two further children of the marriage were born in Australia in 1977 and 1978 respectively. During the period from 1972 to 1981 the applicant was employed as a factory worker until retrenched in March 1981; he received unemployment benefits for about 18 months. In 1982 the appellant sold his home and purchased a 7 hectare property in the Goulburn Valley. In 1983 and 1984 he was involved in car accidents and received unemployment benefits for another period of approximately 18 months. In 1985 he returned to Turkey for family purposes. Shortly after his return to Australia he was charged with offences consisting of sexual assaults on his twin daughters.

The grounds stated in the notice of appeal were:

"(a) The learned Deputy President erred in law in not correctly ascertaining and applying the relevant principles of law in determining that the decision of the Minister for Immigration Local	Government and Ethnic Affairs under	section 12 of the Migration Act 1958
Australia 6; affirmed. . that the applicant be deported from
(b)	The learned Deputy President erred in law in failing to take into account a relevant matter or alternatively failing to give any or any sufficient weight to a relevant matter, in that he did not take Into account sufficiently or at all the real and well-founded apprehension on the part of the applicant that if he is deported, he will be subjected to harassment and physical abuse possibly amounting to physical harm to hlmself, from hls wife's family llving in Turkey.
(C)	The learned Deputy President erred in law in falling to take into account a relevant matter or alternatively failed to give any or any sufficient welght to a relevant matter, in that he did not take into account sufficiently or at all the hardship falllng upon the children of his brother, or the hardship falling upon his brother, and his brother's wife, if he is deported.
(d)	The learned Deputy Presldent erred in law in faillng to take into account a relevant matter or alternatively falled to glve any or any sufficient welght to a relevant matter, in that he did not take into account sufficiently or at all the hardship falling upon hls younger children, if he is deported.
( e )	The learned Deputy President erred in law in falling to take into account a relevant matter or alternatively failed to give any or any sufficient weight to a relevant matter, in that he did not take Into account sufficiently or at all the
applicant's contribution to
Australian society and his social, family and business ties in Australia.

(f) The learned Deputy Presldent erred in law in failing to take into account a relevant matter or alternatively failed to give any or any sufficient weight to a relevant matter, in that he did not take into account

sufficiently or at all the

applicant's inability to obtain paid employment, rehabilitative support and adequate livlng conditions if he is deported.

(g)	The learned Deputy President erred in law in failing to take into account a relevant matter or alternatively failed to give any or any sufficient weight to a relevant matter, in that he did not take into account sufficiently or at all the ability of the applicant to obtain paid employment in Australia and the
rehabilitative support and
possibilities available to him in Australia.
(h)	The learned Deputy President erred in law in failing to take into account a relevant matter or alternatively failed to give any or any sufficient weight to a relevant matter, in that he did not take into account adequately or at all the applicant's being deprived of the protection of the principle of autre fois convict if he is deported.

(i)   The learned Deputy President erred in law in that the determination of the Tribunal having regard to the grounds stated herein is so unreasonable that no reasonable Tribunal could have reached it."

Shortly before the commencement of the present hearing, counsel for the appellant filed a document ("the

contentions") whlch set out his contentions on the grounds of

appeal, and elaborated ground (a) in particular.

It may be said immediately that grounds (c) and (h) do Ground (c) claimed that the Tribunal failed to glve any or	not disclose errors of law on the part of the decision-maker.	sufficient welght to the hardship that would be caused to the appellant's brother and his wife by the deportation of the appellant. It is simply not correct to assert that the Tribunal failed to give any weight to this consideration; he expressly dealt with it.
Ground (h) clalmed that there was an error of law by the Tribunal in falling to take into account "the applicant's being deprived of the protection of the principle of autre fois convict if he is deported". Again, the assertion is not correct. The Tribunal dealt with the Issue and concluded that "on balance it seems to me the risk of double leopardy is remote to the extent that it is not a factor whlch would tip the balance in favour of the applicant."

It was contended, under grounds (c) and (h), that

insufficient weight was given to those matters. Similarly,

grounds ( b ) , (d), (e), (f) and (g) all claimed that the Tribunal failed to take into account a relevant matter or failed to give any or sufficient weight to such matter. In each case the matter was taken into account by the Tribunal. The real complaint of the appellant appears to be that each matter was given insufficient welght.

In this connexion counsel for the respondent Minister in Nevistlc v Minister for Immigration and Ethnic Affairs relied upon a number of authorities, Including the decision (1981) 34 ALR 639 at 645-6 where Deane J. said:

"The appeal to this court lies pursuant to the provisions of S. 44 of the Administrative Appeals Trlbunal Act 1975 (Cth). By the express provisions of that section, the appeal is limited to a question of law. This court is not entrusted with the duty or power to conduct a review on the merits of the Minister's decision on the question of deportation of an alien. That power and duty is entrusted to the Administrative Appeals Tribunal and to that Tribunal alone. The gravity of the consequences of the deportation of the applicant, to the applicant himself, to his wife and to their four Australian children leads inevitably to a desire to ensure that the applicant has access to every legitimate avenue of appeal. It cannot, however, warrant the court's purporting to arrogate to itself a jurisdiction which it does not possess."

Counsel also referred to the decision of Fox, Deane and Morling JJ. in Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598; it was there held that the Tribunal had erred in law in givlng weight to an irrelevant consideration, namely, the Minister's decision to deport the applicant. However, in dealing with a submission that the decision of the Tribunal was against the evidence or the weight of the evidence, the Court said, at p. 601:

"An appellant who attacks a conclusion of the Tribunal because of deficiency of proof said to amount to error of law must show, if he is to succeed, that there was no

material before the Tribunal upon which the conclusion could properly be based."

Another passage cited by counsel for the respondent Minister was from the passage in Blackwood Hodge (Australia) Pty. Ltd. v Collector of Customs (NSW) (1980) 47 FLR 131, in which Fisher J. said (at 148):

"In these circumstances it 1s not possible to say that there was no evidence to support the declsion or that all the evidence was Inconsistent with and contradictory of the decision. Thls court might feel that such a decision is unsatisfactory and that too much slgniflcance was attached by the Trlbunal to these features. However in the light of the principles above mentioned it cannot say that it is unreasonable in circumstances where there is some evidence, the welght or significance of which the Tribunal 1s alone entitled to assess, to support the conclusion ..."

More recently Davies, Lockhart and Gummow JJ., in Apthorpe v Repatrlatlon Commission (1987) 77 ALR 42 at 53, said:

"In considering the tribunal's flnding . . . , it is necessary to keep in mind that the tribunal was the judge of the facts and that its decision is not to be set aside unless it is shown that the tribunal failed to take into account some relevant matter or took Into account an Irrelevant matter or misconceived the legislation or that the facts before it could not support the flnding that was made, that 1s to say, that the finding was perverse or unreasonable."

Their Honours then quoted with approval the following passage

Pty. Ltd. v MacKellar (1981) 38 ALR 363 at 375:	from the reasons for judgment of Deane J. In Sean Investments	l ' . . . I consider that the following comments
of the United Kingdom Court of Appeal (Megaw, James and Geoffrey Lane LJJ) in Elliot v Southwark London Borough Council
'[m 2 All ER 781; [l9761 1 WLR 499 at 507; In relation to a local authority, are
appropriate in respect of the
recommendations of the Committee and the decision of the Minister in the present case: 'It is clear that the matters which the local authority should conslder ... vary from case to case. It is not for the court to prescribe a llst of matters which must always be considered or to prescribe whlch factors should be glven more weight than others. It is worth repeating that the function of the court, where such issues are ralsed, is not to substitute its own opinion or decision on matters which Parliament has left to the judgment of the local authority but to decide whether the local authority in reaching its decislon has acted in accordance with the statutory provisions.'
In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the partles, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of £allure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has falled to take into account a consideration which he was, in the circumstances, bound to take .into account for there to be a valid exercise of the power to decide."

It should not have been necessary to refer at such length to those authorities. However , they have been set out because it would seem that some practitioners whb draft notices of

appeal are under a misapprehension as to the role of this	court in hearing appeals under S. 44 of the Administrative
Appeals Trlbunal Act; it should perhaps be added that that observation is not directed towards counsel for the appellant in this matter.
The main ground in this appeal is ground (a), under which several submissions have been advanced. One is that the Tribunal misapplled S. 12 of the Act by taking into account the first 5 offences for which the appellant was convicted; it was contended that the Tribunal erred in treating the first 5 offences as capable of forming the basis for the deportation order.
Counsel for the appellant pointed out that the appellant arrived in Australia on 20 September 1972. The first 5 offences of which he was convicted occurred between 1 July 1981 and 31 March 1982 i.e. at a time when he had been residing in Australia for a period in excess of 5 years.

Section 12 of the Migration Act 1958 provided as

follows:

"12. Where -

(a)	a person who is a non-citizen has, either before or after the commencement of this section, been convicted in Australia of an offence;
(b)	at the time of the commission of the offence the person -

(l) was not an Australian citizen; and

(ii)had been present in Australia as a permanent resident for a period of less than 10 years or for periods that, in the aggregate, do not amount to a period of 10 years; and

(C) the offence is an offence for which the person was sentenced to death or to imprisonment for life or for a period of not less than one year,

the Minister may order the deportation of
the person."

Before the amendment to the Act, the relevant provision of the Migration Act 1958 was S. 13 which provided for a period of 5 years instead of 10 years. Accordingly, at 31 march 1982, when the last of the flrst 5 offences was committed, those offences could not have validly formed the basis for deportation. Counsel submitted that the appellant possessed an "accrued" right within the meaning of S. 8(c) of the Acts Interpretation Act 1901; further, that that right remained in existence, notwithstanding the coming into force of S. 12 of the Miqratlon Act 1958, which was Inserted by Act No. 112 of 1983, operative from 2 Aprll 1984.

Section 8(c) of the Acts Interpretation Act 1901

provides as follows:

"8. Where an Act repeals in the whole or

in part a former Act, then unless the

contrary Intention appears the repeal

shall not -

..m.

(C) affect any right privilege obligation
or liability acquired accrued or
.incurred under any Act so repealed; or

Counsel for the appellant in support of this argument sought to rely upon the decislon of the High Court of Australia in Nolan v Minister for Immigration and Ethnic Affairs and Anor. (1988) 80 ALR 561. However, having taken into account hls submissions, in my opinion the decision does not support his argument.

In Nolan's Case Mason CJ., Wllson, Brennan, Deane, Dawson and Toohey JJ., referring to S. 12 of the Act, said, at p. 566:

"There remains for consideration on the demurrer the plaintiff's argument that, as a matter of statutory construction, S. 12 did not authorise the making of the deportation order in the present case. It is not submitted that, as a matter of ordinary language, the words of S. 12 do not extend to the plalntiff. The argument is that S. 12 should be construed as not applylng to the plalntiff for the reason that, at the time the section was amended to apply to "non-citizens", the plaintiff had become "immune from deportation" under the then existlng law. That being so, S. 12 should not (according to the argument) be construed as lntended to deprive the plalntiff of that "immunity".

Whatever force this argument might have as an appeal to notions of fairness, and we express no view in that regard, it is without legal merit. The words of S. 12 are plain and unambiguous. The intended	width of their operation is underlined by	the fact that the deportation power which
they confer expreislv extends to a "non-citizen" who "before or after" the commencement of the section in its present form has committed an offence of the kind and in the circumstances designated by the section. In our view, the sectlon reveals a clear legislative intent that its provisions should extend to any "non-citizen" who otherwise comes within its words regardless of whether he was, at the time of commencement of the section in its present form, within the reach of the section in its earller form. There is no overriding rule of construction, statutory or otherwise, which can be applled to defeat that clear legislative intent."

The High Court's statement that "There is no overriding rule of construction, statutory or otherwise, which can be applled to defeat that clear legislative intent" provides, in my opinion, an insurmountable barrier to the appellant's argument. Accordingly, the first submission advanced by counsel for the appellant in relatlon to ground

(a) must fail.

A further submission advanced by counsel for the appellant under ground (a) was that the Tribunal misdirected Itself on the application of policy; he submitted that the policy of 4 May 1983 should not have been taken into account as a relevant consideration at all because it dld not come into existence until approximately 8 months after the appellant had been in Australia for a perlod of 10 years; further that the Tribunal in its consideration of the 1983 policy erred in failing-to have regard to the fact that some

preceded the 1983 policy.	of the 21 offences for which the appellant was convicted
The policy on- S. 12 deportations was tabled in the Australian Parliament on 4 May 1983 by the Minister. It included the following:-

"9.- Examples of serious offences which may render non-Australian citizens liable to deportation include:

....

.	organised criminal actlvity (whether
within Australia only or

~nternationally);

. serlous sexual assaults whether or not accompanied by other violence (especially where there has been more than one sexual offence);

. armed robbery;

. violence against the person;

. terrorist activlty and assassination;
. kidnapping;
. blackmail;

. extortion.

Crimes against children, because of their

vulnerability, take on a special

significance, especially Inducement to drugs, sexual assaults, violence,

kidnapping and crimes taking unfair

advantage of children."

I accept the respondent's argument that the Tribunal did not err in having regard to the 4 May 1983 policy when considering the offences committed prior to commencement of the policy, which did not draw any distinction between

offences committed before, and offences committed after, the	date of the policy.
Of the 21 offences of whlch the appellant was convicted, counts 1 to 5 were the only offences which fulfilled the criteria set out in S. 12 of the Migration Act
1958 i.e. they occurred within the 10 year period of the
appellantvs tlme in Australla. Count 6 concerned an offence occurring between 1 February 1982 and 30 June 1983 - no precise date of the offence belng specifled. Counts 7 to 21 related to offences after the 10 year period.
Counsel for the appellant did not dispute (transcript p. 18) that the Tribunal was entitled to take into account the offences which had occurred after September 1982; however, he submitted that the Tribunal's failure to draw a distinction between the first five charges on the one hand - which provided the statutory basis for the operation of S. 12 - and the remaining 16 charges, on the other, was so prejudicial that the decislon should be set aside.
The Tribunal in its reasons for decision when dealing with the seriousness of the offences of whlch the appellant was convicted stated:

"The deportation pollcy (4 May 1983), in glvlng examples of the types of offences rendering non-citizens llable t o deportation states (paragraph 9):

their vulnerability, take on a special	'crimes agalnst children because of
significance especially inducement to drugs sexual assaults, violence, kidnapping and crimes taking unfair advantage of children.'

The crimes of which the applicant was

convicted were sexual assaults over a four

year period against his twln daughters, when they were aged from eleven to fifteen years. Notwithstanding the applicant's denial of the offences, the trlal Judge when sentencing the applicant had this to say:

"Mr. Tasllk the lury found you guilty on 21 counts of indecent assault upon your two eldest daughters. Thelr verdict was not surprising."

The gravity of the offences is intensified by their multiplicity and the period of time over which they occurred."

Counsel for the appellant submltted that the Tribunal erred in law in failing to take into account a relevant consideration, namely, that only the first 5 offences provided a statutory basis for deportation pursuant to S. 12 and that in considering whether afflrm the deportatlon order against the appellant, as a person in respect of whom the statutory pre-condition of S. 12 had been fulfilled, a declsion in favour of deportatlon should not have been reached unless the flrst- 5 offences, by and of themselves, warranted deportation. Other factors, including convictions for later offences occurring outslde the 10 years perlod, could not, it was submitted, be relied upon as "tipping the balance" in favour of deportatlon. I am unable to uphold that submission.

It was further submltted that the Tribunal had failed to establish flrst, the- commission of an offence withln 10 years to ground the operation of S. 12 and second, an examination of the remaining convictions which could properly have been considered as a discretionary matter favouring deportation. There had been no distinction drawn between the flrst 5 offences and the remaining 16 which could properly go to discretion. It was contended that all 21 offences were treated as fulfilling S. 12. However the Tribunal did not say that they were fulfilling S. 12 and in my view dld not act upon that basis. The submission is rejected.

Another argument advanced by counsel for the appellant was that the Tribunal failed to independently assess the nature and quality of the appellant's relevant criminal conduct and as a result it erred in concluding that there was a possibility of recidivism. Counsel stated that the Tribunal took into account all 21 offences without knowing with any precision the exact nature of the offences other than they were sexual assualts committed over a four year - period. He referred to the Tribunal's conclusion:

"In welghing up the factors in favour of and agalnst deportation, I have come to the conclusion that the seriousness of the offences for which the applicant has been convicted, and the possibility of recidivism outweigh the personal considerations whlch are favourable to

him."

He argued that there was no evidence to support a finding that there was a possibility of recidivism, pointlng out that the appellant had not seen his two youngest daughters since 1985. He said that there is in force a restraining order preventing him from contacting his wife and two youngest daughters and that there is no other criminal conduct of which the appellant is said to have been guilty.

As against those factors the Tribunal had before it the fact that the applicant had been convicted of 21 offences. The commission of the 16 offences, in addition to the first 5, were relevant to the Tribunal's consideration of the risk of recidivism. The offences were committed over a four year period; the sentencing judge considered them sufficiently serious to warrant a substantial term of imprisonment. In addition the Trlbunal heard the appellant's evidence. It concluded that:

".. . the applicant's attitude towards his

convlctlons suggests the rlsk of reoffending is a possibility which cannot be disregarded. whlle it is accepted that where offences are isolated, unpremedltated acts, the risk of recidivism is qulte low, in the present case the offences occurred over a perlod of four years. .... [the applicant's] blind refusal to accept the events that have happened . . . is a disturbing one in the context of the applicant's attitude to the law and the risk to the community".

I am unable to uphold the appellant's submission that there was no evldence to support to the Tribunal's conclusion	in relation to the possibility of recidivism. The conclusion
was reached after careful consideration (appeal book 231-234) and was open to the Tribunal on the material before it.
Counsel for the appellant further submitted that the Tribunal erred at law in hls application of S. 12 to the
circumstances of thls case, in that it falled to make a
sufficient inquiry as to the nature of the offences of which the appellant was convicted. He argued that the Tribunal was under a duty "to know with more precision" than was contained in the presentment of each of the charges of which the appellant was convicted, before concluding, as it did, that:

"Glven the nature of the offences, there must be compelling factors sufficient to outweigh thelr seriousness if the applicant is to be permitted to remain in Australia."

I do not accept the appellant's argument on this point. The Tribunal had before it the remarks of the sentencing Judge and the fact that 21 offences had been committed over a fairly lengthy period of tlme. For all of these reasons, the various submissions advanced under ground

( a ) have failed.

I have dealt earller in these reasons for judgment with the law relating to the limited role of this court in hearing appeals from the Tribunal. They are relevant to

them. No substantial argument was addressed to the court by	those other grounds but I shall make some brief comments on
the appellant's counsel in respect of ground (b), although, in his contentions, it was said that the Tribunal failed to give sufficient weight to the consequences which might flow to the appellant on his return to Turkey should he be deported. Ground (c) was dealt with earlier in these reasons.
Ground (d), as originally expressed, contended that the matter had not been given any or any sufficient welght.
In his contentions, the appellant's counsel particularised
somewhat differently. It was put that, as the Tribunal had
"recognized the significance" of the hardship of deportation
to the younger children of the appellant, but was unaware of
their views and of those of the appellant's wife, a duty had
resided with the Minister's delegate to have enquiries made
in order to ascertain the views of the appellant's wife and
her younger children. The Tribunal expressly referred to
"the right of the [younger] children ... to know of and be
given the opt~on of maintaining contact with their father"
and said that it was "a significant factor. That right is

-

not to be lightly disregarded. The human~tarian issues ... [are] the most compelling of the factors for consideration". The Tribunal also knew that since 25 October 1 9 8 5 a restraining order has been in force prohibiting access by the appellant to his children. In my opinion this ground does not disclose any error on the part of the Tribunal; it was

purpose of making the enquiries suggested now by the	not under a duty to remit the matter to the delegate for the	appellant's counsel.
As to ground (e) the appellant's counsel similarly sought, by his contentions, to alter somewhat the ground from one alleging insufficient welght, to one claiming that there was an absence of evidence. The essence of the appellant's complaint is that the Tribunal did not disavow the conclusions reached by the author of the submission to the delegate of the Mlnister or the conclusions of the delegate as to the appellant's contribution to Australian society. The author of the submission had written that the appellant had made "no significant contribution to the Australian community" and the delegate had accepted that submission as a factor in favour of deportation. However, although the Tribunal dld not "disavow" this conclusion it examined the Issue independently, took it into account as a factor to be welghed and expressed itself in words which differed from those in the Departmental submission, accepted by the delegate. It said:

"While accepting the applicant has made some contributions to the Australian community, it must be balanced against the effect of his actions upon his family and the community at large ... In the circumstances, I do not think the applicant's contribution to the Australian community tips the scales of balance in his favour."

It may be added that the conclusion which the author

of the submission reached, and which the delegate accepted,

was based on material which Included an interview with him;

in that interview the appellant's work hlstory was recorded,

as was his membership of the Turkish Islamic Association and

hls regular attendance at the mosque. Plainly it could not

-

be suggested that the Tribunal did not have before it evidentiary material supporting the conclusion it reached as to the appellant's contribution to Australia.

Neither ground (f) nor ground (g) disclosed any error of law. Ground (h) was dealt with earlier in these reasons.

Ground (i) of the appeal claimed that "the determination, ... having regard to the grounds stated hereln is so unreasonable that no reasonable Tribunal could have reached it". That ground as particularised in the

contentions, referred to the Tribunal's reference (appeal

book 242) to "the possibility of recidivism". I have in these reasons already concluded that it was open to the Tribunal to have reached the conclusion it did on that question. The ground cannot be upheld.

For the reasons given the appeal should be dismissed

with costs.

I hereby certify that this and

the preceding 20 pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Keely delivered on

8 June, 1990.

\

Associate:	I
Date: 8 June, 1990.
Dates of Hearing	: 5 March, 1990
Date of Judgment	:  8 J u n e , 1 9 9 0
Solicitors for the Appellant :	Messrs Sica, Agrlcola and Wunderlich

Counsel for the Appellant : Mr. I. V. Hurley

Solicitors for the Respondent:  Australian Government
Solicitor

Counsel for the Respondent : Mr. K. H. Bell